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South Pacific Car Rental Ltd v Attorney General [2025] WSSC 5 (7 February 2025)

IN THE SUPREME COURT OF SAMOA
South Pacific Car Rental Limited v Attorney General & Ors [2025] WSSC 5 (7 February 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

The Constitution of the Independent State of Samoa 1960, the Declaratory Judgments Act 1988, the Land Titles Registration Act 2008, the Leasing and Licensing of Customary Land Act 1965, the Lands and Titles Act 2020, the Government Proceedings Act 1974 and the inherent jurisdiction of the Supreme Court and the Supreme Court Rules 1980.

BETWEEN:

SOUTH PACIFIC CAR RENTAL LIMITED,
a company with its address in Vaimoso, Apia, Samoa

Applicant

A N D:

THE ATTORNEY GENERAL (Hon. Minister MNRE)

First Respondent

A N D:

THE ATTORNEY GENERAL (Registrar of Lands)

Second Respondent

A N D:

THE ATTORNEY GENERAL (Registrar of the Land and Titles Court)

Third Respondent

A N D:

THE ATTORNEY GENERAL (Ministry of MNRE)

Fourth Respondent

A N D:

THE ATTORNEY GENERAL (Government of the Independent State of Samoa)

Fifth Respondent

A N D:

TUI ATUA TUPUA TAMASESE EFI,
the beneficial owner of the land ‘Salani’ situated in the village of Vaimoso.

Sixth Respondent

Counsel: FS Ainuu for the Applicant
S. Alai and T. Roma for the 1^st, 2^nd, 3^rd, 4^th and 5^th Respondents
MG Latu for the 6^th Respondent

Hearing: 31^st October 2024
Ruling: 7^th February 2025

RULING OF CLARKE J
(ON MOTION FOR INTERIM DECLARATORY ORDERS)

1. My apologies to the parties for the delay in delivering this judgment. The judgment had been ready for delivery on the 25^th November 2024. However, when judgment was to be delivered in Court, counsel for the applicant advised that supplementary submissions had been filed some two weeks or so earlier, those dated 12^th November 2024. Those supplementary submissions had not been provided to me. Mr Latu for the sixth respondent filed his supplementary submissions in response on the 6^th December 2024. These were then not provided to me until the 18^th December 2024, shortly before the Christmas Court closure.
2. With a New Year comes renewed hope that these problems in the Court Registry can be sorted out so that unnecessary delays in the delivery of justice well known to judges and lawyers can be avoided.
3. Now, this is an application by the applicant for the issue of interim declaratory orders. On the 1^st January 2010, the applicant leased from the first respondent on behalf of the sixth respondent customary land at Vaimoso known as Salani for a period of ten (10) years with an option to renew for a further ten (10) years (“the lease”). In these proceedings, the first to fifth respondents will abide by any order of the Court. The sixth respondent who is the customary owner of Salani opposes the application on the grounds that:
   • (a) the applicant has breached the lease;
   • (b) the applicant has not sought to renew the lease;
   • (c) the lease has been validly terminated; and
   • (d) damages are an adequate remedy for the applicant.

Background

4. On 1 January 2010, the applicant entered into the lease with the first respondent on behalf of the sixth respondent. The lease term was for a period of ten (10) years expiring on the 31^st December 2020 with an option to renew for a further ten (10) years. Clause 3 of the Customary Land Lease Conditions 1 / 21009 incorporated into the lease terms relevantly provides:
   • “3.2 If an option to renew is stated in the lease instrument the lessee has the option to renew the lease for that period.
   • 3.3 The lessee can exercise the option only if:
   • 3.3.1 the lessee serves on the lessor a written notice twelve (12) to six (6) months prior to the expiration of the term of lease stating that the lessee intends to exercise the option; and
   • 3.3.2 unless the lessor dispenses with this requirement, throughout the term of the lease the lessee has paid rent and other outgoings on time and otherwise complied with the lessee’s obligations under this lease; and
   • 3.3.3 there is at the time of service no rent or other outgoings due for payment; and
   • 3.3.4 at the time of service all other obligations of the lessee have been complied with or fully remedied in accordance with the terms of any written notice given by the lessor.” (emphasis added)
5. Clause 3.3.1 of the lease conditions was amended by Annexure 1 to the lease to require that written notice by the lessee to exercise the option to renew shall be not less than twelve (12) months.
6. Clause 11 of the Customary Land Lease Conditions 1 / 21009 dealing with the end of the lease further provides that:
   • “11.4 If the lessee continues to occupy the land after the expiration of the term of the lease without the lessor demanding possession then the lessee is –
     • 11.4.1 deemed to hold the land under a monthly tenancy determinable at any time upon one month’s notice;
     • 11.4.2 at the same rent; and
     • 11.4.3 upon and subject to the rights, terms, covenants and conditions (specific or general) in this lease so far as they can be applied to a monthly tenancy.”

The Applicants Proceedings

7. By originating proceedings entitled “Motion Judicial Review and Constitutional” dated 6^th September 2024, the applicant seeks declarations declaring that:
   • (i) the lease has been validly renewed;
   • (ii) the first respondent’s termination notice dated 4^th June 2024 was invalid and therefore void; and
   • (iii) the third respondent’s order of 19 August 2024 was unconstitutional, unlawful and therefore invalid.
8. The essence of the applicant’s substantive case is that the applicant renewed the lease or if not, that it ought to be renewed pursuant to section 18 of the Leasing and Licensing of Customary Land Act 1965. These interim proceedings seek to maintain by interim declaratory orders the status quo, principally, the continued occupation of the land by the applicant without interference from the respondents until the substantive proceedings have been dealt with.

The Law

9. The principles governing interim declaratory orders seem to have been dealt with in only a few cases in Samoa.^[1] The grant or refusal of a motion for interim declaratory orders are contingent on two (2) questions, corresponding to those adopted in terms of interim injunctions:^[2]
   • (a) whether there is a serious question to be tried or as the Court of Appeal in Ropati v Attorney General [2023] WSCA 2 stated, whether the applicant has a serious arguable case; and
   • (b) where the balance of convenience lies.
10. In Klissers v Farmhouse Bakery Ltd; Harvest Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129, Davison CJ at page 133 stated:
    • “The threshold question in each case must be whether the plaintiff has established that there is a serious question to be tried. In order to determine that question the Court must consider - first, what each of the parties claims the facts to be; second, what are the issues between the parties on these facts; third, what is the law applicable to those issues, and, fourth, is there a tenable resolution of the issues of fact and law on which the plaintiff may be able to succeed at the trial...”
11. In Esera v National University of Samoa [2003] WSSC 12 (8 August 2003), Sapolu CJ explained the term “balance of convenience as:
    • “The expression "balance of convenience" is explained in Equity and Trusts in Australia and New Zealand (2000) 2^nd ed by Dal Pont and Chalmers in these words:
      • "Though expressed as a ‘balance of convenience’, the balance that the Court seeks to make is more fundamental and weightier than mere convenience – it is the ‘balance of the risk of doing an injustice’ that better describes the process. In assessing where this balance lies, the Court must weigh the respective risks that injustice may result from its deciding one way rather than the other at a stage when the evidence is incomplete."”

Discussion

12. I turn to consider the threshold question as to whether there is a serious question to be determined. First, the facts. There is little dispute on the key facts. The applicant entered into a ten (10) year lease commencing 1 January 2010. An option to renew the lease was available for a further ten (10) years. The relevant renewal terms of the lease are set out under “Background” above. It is not contested that the applicant did not serve on the first respondent a written notice twelve (12) months prior to the expiry of the lease of the applicant’s intention to exercise the option to renew the lease. To date of hearing, the applicant still had not served such notice.
13. Second, the issues on the facts. The applicant says, amongst other matters, that “for all intents and purposes, the Parties continued with the lease understanding that it had been renewed; or that if it had not been officially renewed the Parties intended and continued with the lease as if it had.”^[3] The applicant also refers to extraordinary circumstances that prevented the applicant from applying to renew the lease, such as the Covid-19 lockdown which prevented Mrs Epi Jean-Smith from re-entering Samoa until 2022.^[4] At no time did the first or sixth respondent also show any desire or take any action that would indicate to the applicant an intention to terminate the lease or that they intended not to renew the lease. To the applicant’s detriment, Mrs Epi Jean-Smith says that on or about the 25^th January 2024, an employee of the fourth respondent advised her that the sixth respondent had renewed the lease for another ten (10) years. A copy of a Computer Folio Certificate annex “D” to the affidavit of Mrs Jean-Smith records lease 33557 of the land to South Pacific Rentals Ltd. The applicant further says that the termination of the lease by the first respondent on the 4^th June 2024 was invalid.
14. For the sixth respondent, Mr Latu’s submissions is that the matter is straightforward. There is no question as to whether or not the applicant complied with the lease terms. The applicant did not and has still not served a notice on the first respondent of its intention to renew the lease. As a result, the lease reverted to a monthly tenancy determinable on one (1) month’s notice. One (1) month’s notice of termination was given and the lease has been validly terminated. There is therefore no serious question to be tried.
15. Third, what is the law applicable to these issues? Section 18 of the Leasing and Licensing of Customary Land Act 1965 does not in my view assist the applicant in terms of its argument that the lease has been renewed or ought to be treated as having been renewed. Section 18 simply provides that nothing in section 4 of the Licensing of Customary Land Act 1965 “on or before the surrender or the expiration of the term or last renewed term of a lease” prevents the granting of a new release. Should the lessor wish to renew or grant a new lease, section 4 does not preclude the lessor from doing so. However, the first and sixth respondents say a new lease has not been granted nor do they wish to extend the lease or to grant a new lease.
16. I now turn to the applicant’s submission to the effect that despite the applicant failing to give written notice of its intention to renew, “the Parties continued with the lease understanding that it had been renewed; or that if it had not been officially renewed the Parties intended and continued with the lease as if it had.”^[5] In her affidavit dated 5^th September 2024, Mrs. Epi Jean-Smith explains frankly at paragraph 22 the reason why she did not give written notice to renew the lease:
    • “That it never occurred to me to renew the Lease as I was busy with trying to salvage our business, nor did I get any indication from the Lessor that the lease would not be renewed or that they intended (then) to terminate the lease.”
17. Despite failing to give the written notice of an intention to renew the lease required by the terms of the lease, the applicant refers me to ET Oldehaver & Company Ltd v Attorney-General on behalf of the Minister of Lands [1977] WSLawRp 6; [1970-1979] WSLR 124 (17 June 1977) and Luteru v Accident Compensation Board [2003] WSSC 7 (8 April 2003). These cases do not assist the applicant. In ET Oldehaver & Company Ltd, the tenant of customary land there too also failed to give notice of intention to renew in accordance with the terms of the customary land lease. Chief Justice Nicholson stated, “the giving of the requisite notice was a condition precedent which the plaintiff has failed to fulfil and is thus unable to avail itself of the remedy as no absolute contractual obligation has arisen.”
18. Chief Justice Nicholson also turned his mind to whether there had been a waiver by the defendant in that case of the need to give notice in accordance with the lease. He noted that a “waiver must be intentional and with full knowledge.”
19. Similarly, Luteru v Accident Compensation Board does not advance the applicant’s case. First, it deals with freehold land and section 105 of the Property Law Act 1952. Second, and more relevantly, there was no tenancy agreement between the plaintiff and the defendant, the Accident Compensation Corporation. Although a lease had earlier existed, it had expired and was between the plaintiff and the government. No holding over clause applied.
20. In this case, there was an obligation on the applicant to give written notice of an intention to renew the lease for the lease to be renewed. This, as Chief Justice Nicholson in Oldehaver said, was a condition precedent for the renewal of the lease between the applicant and first respondent on behalf of the sixth respondent. That obligation at all times rested with the applicant and not the first or sixth respondent. There is no reverse onus as was suggested by counsel for the applicant. The respondents did not waive the requirement for written notice.
21. The lease term ended on the 31^st December 2020. After the expiration of the lease, the applicant was deemed to hold the land under a monthly tenancy determinable at any time upon one month’s notice. On the 4^th June 2024, the first respondent purportedly terminated the lease giving one month’s notice.
22. I now turn to the final question whether there is a tenable resolution of the issues of fact and law on which the plaintiff may be able to succeed at the trial...” In short, no. The lease terms are not in dispute. If the applicant wished to renew the lease, written notice by the lessee to exercise the option to renew was required to have been given “not less than twelve (12) months” prior to the expiry of the lease. The lease expiry date was 31 December 2020. As such, the applicant’s notice of intention to renew the lease was required to have been given to the first respondent no later than 31 December 2019. No such notice was or has been given. According to terms of the lease, the applicant was thereby deemed to hold the land under a monthly tenancy determinable at any time on one (1) month’s notice.
23. Although Mrs. Epi Jean-Smith refers to COVID-19 and being overseas on medical treatment when Samoa’s borders closed as a reason why the applicant did not give notice of its intention to renew the lease, I take judicial notice of the fact that Samoa’s border closure came into effect on or about 20^th March 2020, some months after notice was required to have been given. This could have no material bearing on any failure to give notice of intention to renew the lease on or before 31 December 2019.
24. Similarly, the applicant has not sought to invoke the force majeure clauses of the lease. The invocation of the force majeure clause due to COVID-19 would also have little apparent merit given that notice of intention to renew the lease was to be given on or before 31 December 2019, and Samoa’s borders did not close until about 20^th March 2020.
25. Having failed to give notice of its intention to renew the lease (a condition precedent to renewal) and the lease terms deeming the lease to then be a “monthly tenancy determinable at any time on one (1) month’s notice”, there is no tenable argument by which the applicant might succeed at the trial that (a) that the lease was renewed or (b) the notice of termination by the first applicant dated 4 June 2024 was invalid or unlawful. The lease is determinable on one (1) month’s notice, the period effectively (30 days) stated in the letter terminating the lease.
26. For the reasons stated on the material before me at this juncture, there is no tenable argument in my view by which the applicant might succeed at trial in these proceedings. The threshold question that there is a serious question to be tried has not been met and the balance of convenience rests with the first and sixth respondents. Damages are also an adequate remedy for the applicant. The overall justice thus weighs against the grant of the interim declaratory orders. Accordingly, the application for interim declaratory orders must be dismissed.
27. Having reached this conclusion, counsel for the applicant has sought (without prejudice to the applicant’s rights in terms of the substantive proceeding application and claim) to be given until the end of October to dismantle its buildings and relocate. What the applicant seeks is a declaration from the court that the applicant be given time to dismantle its building and relocate its business.
28. Having reached the conclusion that I have, the Court cannot issue the declaration sought. However, I encourage and call on the first and sixth respondents in the spirit of goodwill to allow the applicant reasonable time to dismantle its buildings and to relocate.

Result

29. Accordingly:
    • (a) the Motion for Interim Declaratory Orders is dismissed; and
    • (b) Costs reserved.

JUSTICE CLARKE

[1] Ropati v Attorney General [2023] WSCA 2 (18 July 2023); Ropati v Attorney General [2022] WSSC 76 (31 October 2022); IRSS Nominees (30) Limited v Commissioner of Inland Revenue [2014] WSSC 59; Drake and Co v Bank of Western Samoa [1997] WSSC 25.

^[2] Referred and generally applied by the Court of Appeal in Ropati v Attorney General [2023] WSCA 2 (18 July 2023).
^[3] Plaintiff / Applicants Submissions in Support of Its Application for Ex Parte Interim Declaratory Orders dated: 31 October 2024, paragraph 7(b).
^[4] Plaintiff / Applicants Submissions in Support of Its Application for Ex Parte Interim Declaratory Orders dated: 31 October 2024, paragraph 9(c).
^[5] Plaintiff / Applicants Submissions in Support of Its Application for Ex Parte Interim Declaratory Orders dated: 31 October 2024, paragraph 7(b).